The case, called Oil States Energy Services v. Greene’s Energy Group, stems by a dispute over a method using in hydraulic fracturing, or fracking. although the key issue can be IPR, which, since the item was introduced from the 2011 America Invents Act, has faced numerous legal challenges.
“This kind of can be like lawyer nirvana,” said Arti Rai, a professor of law as well as co-director of the Duke Law Center for Innovation Policy. Rai worked from the Obama administration when the America Invents Act was being drafted, as well as wrote a brief with 71 various other law professors in support of IPR from the Oil States case.
“The idea was, essentially, which there should be a way to do a fairly low-cost challenge to a patent grant which seems suspect,” Rai said in an interview. “Challenging from the courts can be actually expensive.”
The America Invents Act enables patent challengers to petition the U.S. Patent as well as Trademark Office to essentially take a second look at patents the item’s already granted. as well as the item’s been embraced by tech giants; Apple, in a Supreme Court brief said the item’s filed more IPR petitions than any various other company, at 267 through 2016. which’s almost 5 percent of all the petitions filed since 2012.
“the item’s been a actually useful tool for companies to defend against patents which shouldn’t have been issued from the first place,” said Joshua Landau, patent counsel for the Computer as well as Communications Industry Association. He estimates the system has saved $2.3 billion in legal fees alone from the last 5 years.
Big pharmaceutical companies which sell branded medicines, for the most part, hate the item.
Competitors which want to bring generic copies of drugs to market have increasingly used the IPR system to try to invalidate patents. Mylan, for example, says the item’s filed 88 IPR challenges against 37 branded medicines, seeking to bring cheaper versions to market earlier.
Often, drug companies face IPR challenges in addition to simultaneous suits from the federal courts. They argue the two systems have different standards, as well as which IPR can be less favorable to patent holders.
What’s more, the item’s not only generic competitors which have sought to use the IPR system to dismantle patents. In 2015, hedge-fund investor Kyle Bass used the IPR system to file challenges against multiple drug companies while being suspected of shorting their stocks.
“The America Invents Act was an effort to destroy the U.S. patent system,” said patent attorney Michael Shore, who cites an estimate which the system has cost the U.S. economy $1 trillion in lost patent value (a figure others dispute). “They’ve done a pretty Great job of doing the item.”